Opinion
Record No. 1803-93-3
February 4, 1994
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE DIANE MCQ. STRICKLAND, JUDGE.
Virginia B. Theisen, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellant.
Marian A. Kelley, Assistant Public Defender, for appellee.
Present: Judges Benton, Koontz, and Willis.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The trial judge granted a pretrial motion to strike evidence obtained during a traffic stop. The Commonwealth appeals from that decision, see Code § 19.2-398(2), and contends that the trial judge erred in finding that the evidence failed to prove a reasonable, articulable suspicion for the stop. We affirm the order because the record supports the trial judge's decision.
In an appeal by the Commonwealth from an order of a trial judge suppressing evidence, "[w]e view the evidence in a light most favorable to . . . the prevailing party below, and we grant all reasonable inferences fairly deducible from that evidence."Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). So viewed, the evidence proved that at 2:47 a.m. a police officer was driving across a bridge when he first saw an automobile coming toward him approximately forty or fifty feet away. In the few seconds he had to observe the automobile, he noticed that it was "tipping" as it passed through a "little curve" on the bridge and then passed his vehicle. In response to the question, "you can't say how fast or slow she was going," the officer responded "Right." The officer testified that the automobile was not swerving or weaving. The officer turned his vehicle to follow the automobile. He testified that, although he intended to stop the automobile, he had no basis to give the driver a speeding ticket. After he turned to follow the automobile, he did not observe the automobile speeding or violating any other laws. He followed the automobile onto an intersecting street and activated his blue lights as he came up behind the automobile.
Upon this evidence, the trial judge granted the motion to suppress information that the officer learned when he stopped the driver.
"[A] person may be detained briefly for questioning by an officer who has "'a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.'"Zimmerman v. Commonwealth, 234 Va. 608, 611, 363 S.E.2d 708, 709 (1988). "If the officer's suspicion amounts to merely an 'inchoate and unparticularized suspicion or "hunch" . . . [rather] than a fair inference in the light of his experience, [it] is simply too slender a reed to support the seizure' under the fourth and fourteenth amendments of the United States Constitution." Murphy v. Commonwealth, 9 Va. App. 139, 144, 384 S.E.2d 125, 128 (1989) (quoting Reid v. Georgia, 448 U.S. 438, 441 (1980)).
The officer "reckoned" that his own speed was twenty-five miles per hour when he first saw the automobile. Upon the officer's testimony that he first saw the automobile when it was fifty feet away, the trial judge could have concluded that the officer lacked the opportunity to determine the automobile's rate of speed. Traveling twenty-five miles per hour, the officer would have covered fifty feet in one and one half seconds. The gap between them would have closed twice as fast if the other automobile was traveling the same speed. Thus, the evidence established that the officer had little opportunity to visually judge the automobile's rate of speed. Indeed, the officer testified that he was not able to determine the rate of speed of the oncoming automobile.
The officer turned his vehicle and stopped the automobile because "when her car was tipping [it] appeared to be going over the speed limit, because if [it] was traveling at 25 [miles per hour], she shouldn't have had a problem or the vehicle wouldn't appear to be traveling at a high rate of speed." However, when asked whether the area of the road where he saw the automobile was straight, the officer responded "Well, there's a little . . . bit of a turn there." Thus, the trial judge was required to determine whether, in the instant the officer had to view the automobile, the officer could have had a reasonable suspicion or just a hunch, based on the "tipping" of the automobile. The trial judge was not required to accept as reasonable the officer's supposition that the "tilting" or "tipping" that he observed when the automobile was in a slight curve was caused by speed of forty miles per hour rather than the lawful limit of twenty-five miles per hour. The officer merely speculated that "if [the automobile] was traveling at 25" its suspension system would have responded differently.
The evidence, viewed in its totality, does not establish that the trial judge erred in concluding that the officer's decision to stop the automobile was unreasonable.
Affirmed.